Waldermar v. State , 21 Ga. App. 504 ( 1917 )

Bloodwortii, J.

The defendant was tried for a violation of what is known as the “bone-dry” law, under an accusation which charged that he did “unlawfully transport, ship, and carry and cause to be transported, shipped, and carried from a point without this State to a point within this State, and from place to place in this State, spirituous, vinous; malted, fermented, and intoxicating liquors; and did have, receive, control, and possess, in this State, spirituous, vinous, malted, and fermented liquors.” The evidence shows that there was found at his store a beer bottle about half full of whisky; and at his residence four full quarts of whisky, five bottles and a gallon jug all partly filled with whisky. He admitted having the whisky in his possession, but sought to excuse himself from criminal liability therefor by claiming that he was ill and that his physician 'had prescribed the whisky for him.

1. The special ground of the motion for new trial is ás follows: “The court erred in stating in the presence of the jury, when defendant offered Dr. George H. Lehman, a practicing physician, to prove that as the physician of the defendant he had prescribed a certain amount of whisky for him, deeming' it absolutely essential to the preservation of his life, that ‘such would not be a defense to the present accusation.’” Under the facts of this case the judge did not err in making the above assertion, which was a correct statement of the law. However, if the defendant seeks to take advantage of such alleged error on the part of the judge during the progress of the case, he should do so by a motion to declare a mistrial. Stapleton v. State, 19 Ga. App. 36-38 (13) (90 S. E. 1029), and cases cited; Wilcox v. State, 19 Ga. App. 83 (4) (90 S. E. 1032); Perdue v. State, 135 Ga. 277 (69 S. E. 184).

Decided December 14, 1917.

Accusation of misdemeanor; from city court of Richmond county —Judge Black. September 26, 1917.

O. A. Picquet, for plaintiff in error. W. Inman Curry, solicitor, contra.

2. The jury rendered the only verdict legally possible under the facts, and the motion for a new trial was properly refused.